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Lawyering everything (final exam) Flashcards

1
Q

what do lawyers actually do?

A

questioning and interviewing
fact finding
providing advice
negotiation skills
practical judgement
listening
analysis and reasoning
communication
writing
researching
persuasion
building client relationship

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2
Q

what is the most common complaint regarding lawyers?

A

failure to communicate

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3
Q

model rule 4-1.4

A

A lawyer shall: (1) keep client reasonably informed about the status of the matter, (2) promptly comply with reasonable requests for information, and (3) consult with client about any relevant limitation on the lawyer’s conduct when the lawyer knows the client expects assistance not permitted by the rules of professional conduct or other law

(must keep your client reasonably informed about their case)

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4
Q

what are the different kinds of interviews lawyers conduct?

A

client interviews
witness interviews
depositions - formal testimony of a witness and/or party to the case and/or expert witness taken on the record. attorneys asking questions of despondent who swears under oath to tell the truth. admissible in court

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5
Q

how do attorneys use facts?

A

fact analysis and persuasion
organize facts and create a story
themes that make for a convincing argument - humor, tragedy, strong justification, strong factual support, strong protagonist and antagonist, strong theme

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6
Q

what is the MRCP preamble?

A

a lawyer has a special responsibility for the quality of justice

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7
Q

what is justice?

A

the ethical, philosophical idea that people are to be treated impartially, fairly, properly, and reasonably by the law and by arbiters of the law, that laws are to ensure that no harm befalls another, and that, where harm is alleged, a remedial action is taken, both the accuser and the accused receive a morally right consequence merited by their actions

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8
Q

why is good judgement important?

A

improve a situation and/or prevent it from getting worse
what to not do or say and knowing what to do or say
identify complexities or situations
ability to read between the lines and determine the right course of action

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9
Q

what is integrity?

A

honesty, doing what you say you will do, responsibility, inner strength, humility

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10
Q

model rule 3.3

A

a lawyer shall not knowingly: (1) make a false statement of fact or law to the tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (3) offer evidence that the lawyer knows to be false

(don’t misrepresent fact to the tribunal and if you do, make sure you correct it)

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11
Q

what is the traditional lawyering approach?

A

CULT PITA
corporate/experienced
unrealistic expectations (pre-determined framework)
legal solutions
top down

passive client
influence client’s decisions
technical jargon
authoritarian

+ desk, diploma, casebooks, awards

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12
Q

what must a client decide?

A

when to settle
when to testify
when to plead guilty
whether they will waive a jury trial

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13
Q

what can an attorney decide?

A

technical, legal matters
where/when to sue
what legal theory to sue under
what arguments/defenses to use

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14
Q

what is participatory lawyering?

A

if dad’s reading this I never killed anyone
interest identification
client makes decisions
relationship building (rapport)
team oriented
informed client
non-legal solutions
client knows the nuances of their case best
active client

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15
Q

what do clients like in a lawyer?

A

good listener
good and frequent communication
perceived competence
high-quality work
efficient
winning
a zealous advocate
good judgement
inspires confidence

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16
Q

what do clients dislike in a lawyer?

A

overpromises
bad listener
disrespectful
disorganized
does not care about client
arrogant and short tempered

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17
Q

what is convergent thinking?

A

narrows the inquiry to find a single right answer

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18
Q

what is divergent thinking?

A

broadening the inquiry by thinking in several different directions at once to find more answers, hypothesis, or strategies

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19
Q

what are some active listening techniques?

A

prepare to emotionally listen
use non-verbal language
interrupt only when necessary
be responsive to the content of of the conversation
listen with intent to understand, not to formulate what you will say next
do not rush to fix the problem
“learning stance”
listening to what is not said
be ok with silence

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20
Q

what are some kinds of questions you can ask?

A

open ended questions
narrow questions
leading and non-leading questions
silence
keep pace slow
probing questions

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21
Q

why is multicultural lawyering important?

A

right course of action, in your own self interest, better understanding of the world around you

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22
Q

what are some factors that affect observation?

A

length of time since exposure
whether it stood our or blended into the background
where they distracted
what were they doing at the time
whether they were a careful observer
whether they were under stress

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23
Q

what are cognitive interviewing strategies?

A

reinstate context
tell everything
recall the event in different orders focusing on different things
change perspectives

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24
Q

what are some interview inhibitors?

A

sensitive and embarrassing topics
lawyer not listening or interrupting
age and status of client
client doesn’t want to tell you something that might hurt their case
lawyer’s demeanor

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25
model rule 1.2
a lawyer may take such action on behalf of the client and is impliedly authorized to carry out the representation. a lawyer shall abide by a client's decision whether to settle a matter (don't do anything without the authorization of your client)
26
what are some interview facilitators?
emotional intelligence - friendly and kind confidentiality prepared organization and setting of physical environment notetaking
27
what is the general organization of client interview?
preparation opening/introduction (rapport) information gathering stage probing stage review stage goal identification stage preliminary strategy closing (draft retainer agreement, what do do/not do)
28
what is discovery?
the phase in litigation in which each side discovers facts about the opposing part; governed by federal/state rules and the local rules that apply
29
how to respond to opponent's facts?
identify the facts/witnesses/evidence your opponent will likely use if there are things you cannot discover, think through what they might do and plan how you will combat those areas identify the areas in which you and your opponent conflict (consider significance) put yourself in your opponent's position consider how you will counter these issues and plan for every outcome
30
how to attack your enemy's sources of fact?
evaluate credibility of documents, witnesses, evidence identify the enemy's circumstantial evidence to assess strength of the inferences that must be drawn identify and counter the enemy's contextual facts
31
what is counseling?
help client decide the right decision to make about a legal or strategic question
32
what is advice?
providing the client with the direct legal answer to their question
33
what is healthy detachment + empathy?
viewing the client's problems from an insider's perspective and with a measure of distance so that you can always keep in mind the big picture
34
what are the steps of client counseling?
identify the problem gather/research/evaluate information generate proposed solutions evaluate each proposed solution ask the client to choose best option act on the option chosen
35
what are some challenges of client counseling?
creating options that are legally correct, practical, and realistic working out each option precisely and with sufficient attention to exacting being clear with client empathy + healthy detachment
36
what is negotiation?
persuasive communication with the goal to get the other party to agree on terms as favorable to your client as possible - dialogue between you and opposing counsel
37
what are interests?
needs, desires, concerns, fears, things that a client cares about or wants (the WHY behind their position)
38
what are the 7 kinds of interests?
relational reputational psychological liberty basic human needs performance financial
39
what are rights?
independent external factors that provide legitimacy and fairness to a position contract, precedent, the law
40
what are powers?
coercive factors that help get the other side to do something they normally would not do (can be aggressive or withhold benefits)
41
what are the roles of a lawyer in a negotiation?
evaluate advise negotiate draft
42
model rule 4.1
a party cannot make a material misrepresentation in a negotiation but puffery is allowed
43
what is an adversarial approach to negotiation?
LET PR (handle it) limited distribution of resources each party believes they are entitled to something treats and appeals for concessions positions rights/powers
44
what is a problem solving approach to negotiation?
iPENIS + BATNA interests preserves relationship expansion of resource pool non-competitive similarities integration of resources separates people from problem best alternative to a negotiated agreement
45
what are some ways to determine intersts?
ask open-ended questions ask what the desired outcome is and why this is important? being non-judgemental determine other party's interests
46
why is an initial offer important?
this is an anchoring point the parties will likely return to must justify!
47
what is credibility?
the quality of being trusted in, believed in, convincing, or believable
48
what leads to credibility?
justification, specificity, consequences
49
what does it mean to bet against yourself?
make concessions without gaining anything - this signifies weakness
50
what is boulwarism?
only making one offer, which you believe is reasonable and just, and telling the other side that you will settle on no other terms
51
if the opponent counters with an adversarial approach and you are using a problem solving approach, how do you respond?
ask why or why not ask what if ask for advice ask what makes that fair and, can try to focus on interests, develop unaddressed needs, engage in incorporation
52
what are information bargaining techniques?
broad questions actively listen ask probing questions use silence make the other side feel heard and clarify information
53
what are some ways to ethically conceal information?
under-answer a question answering a question without a question answer a different question and provide information ignore the question and shift to a different topic explain why the question isn't relevant
54
what are some techniques for arguing about rights?
develop a detailed and organized argument multidimensional reasoning (case law, common sense, norms, etc) balanced argument (acknowledge weaknesses) present facts persuasively persist in the fact of rejection unusual or unexpected arguments
55
what to do with threats?
don't make empty threats don't make provocative threats ask for justification show why a threat isn't realistic
56
when to use anger?
intentionally to prove a point or shock use sparingly don't use as an emotional response
57
what is mediation?
a non-binding process where a third party seeks to help resolve disputes or transactions most are conducted in caucuses
58
what are the general stages of mediation?
agree to mediate understand the problems generate solution options reach an agreement implementing the agreement
59
when would you not mediate?
before discovery is completed when you need a judicial standard when you need a legal precedent when you need a judge to control an aggressive lawyer when you are concerned about copycats when client wants their day in court
60
when can you mediate?
anytime before trial
61
what is the role of a mediator?
HLP M RR (help me railroad) helps parties talk lowers emotions persuades parties maintains control relay offers reality check
62
what is the role of a lawyer in a mediation?
prep the client plan strategy draft a mediation statement does most of the talking usually (effective opening statement) manages flow of information ask mediator questions use confidentiality to your advantage
63
what are some mediation/negotiation techniques?
handle one issue at a time use interests/rights/powers/BATNAs as tools explain position and listen to the other side's use objective criteria as a basis for a decision (market value, law, recent relevant verdicts, custom, relational dynamics, logrolling, deadlines, agreeing to some but not all issues)
64
what is the typical mediation procedure?
mediation agreement opening statement identify relevant issues (set agenda) parties present and exchange information in more detail, as needed to move towards resolution develop options to meet interests//needs parties negotiate and choose among the options draft an agreement if reached resolution
65
what are the benefits of caucuses?
parties will be more honest lower tensions diffuse unrealistic expectations develop or propose solutions
66
what does an evaulative mediator do?
expresses their own opinions and may try to influence parties to accept it
67
what does a facilitative mediator do?
seeks to elicit the parties' opinions about settlement options, while keeping their own opinions to the bare minimum
68
model rule 17.06
confidentiality in ADR processes in Missouri
69
what are some ways to overcome an impasse?
restarting the bargaining hypothetical taking a break estimate the size of the gap (confidential listener) sometimes mediator will ask for best and final - end of mediation and true best and final offer
70
what is an arbitration?
an our of court resolution of a disagreement between two parties decided by an impartial third party arbitrator - binding!!
71
who can be an arbitrator?
anyone likely former judges and attorneys but also people in a certain speciality
72
what is the speed of an arbitration?
much shorter than a trial (less discovery) can begin when parties mutually agree and when arbitrator is available
73
what are the costs of arbitration compared to trial?
much cheaper
74
what rules are used in arbitrations?
whichever is specified in contract usually
75
what is the convenience of an arbitration?
parties can be involved simpler and less formal private and confidential
76
when are arbitrations beneficial to use?
can be a less hostile environment - good for parties that want to continue to work together (employer-employee) large corporations NDAs/sexual harassment products liability family law trade secrets

Lawyering (1 decks)

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